In his announcement that John Durham is investigating the deaths by torture of two CIA detainee, Eric Holder suggested that John Durham reviewed information that had not been reviewed by the prosecutors who had earlier declined to prosecute the cases.

That review included both information and matters that had never previously been examined by the Department.

He implied that one source of that new information might be some of the reports–among other things, the CIA IG Report and the OPR Report.

He identified the matters to include within his review by examining various sources including the Office of Professional Responsibility’s report regarding the Office of Legal Counsel memoranda related to enhanced interrogation techniques, the 2004 CIA Inspector General’s report on enhanced interrogations, additional matters investigated by the CIA Office of Inspector General, the February 2007 International Committee of the Red Cross Report on the Treatment of Fourteen “High Value Detainees” in CIA Custody, and public source information.

I wanted to look at what that new information might be.

Manadel al-Jamadi

The AP advances the issue in the case of Manadel al-Jamadi by reporting on what Lynndie England and other Abu Ghraib testified about at their grand jury appearance earlier this month (England’s testimony was first reported by Jane). Of note, the prosecutor asked who put al-Jamadi in the stress position that ultimately ended up effectively crucifying him–and asked questions about a hood that “disappeared.”

Another person who testified told the AP that prosecutors asked about a hood placed over al-Jamadi’s head that later disappeared and who shackled al-Jamadi’s arms behind his back and bound them to a barred window. This witness requested anonymity to avoid being connected publicly with the case.

As a threshold matter, if this person offered some new insight into the people personally involved in al-Jamadi’s asphyxiation–perhaps something that had been reflected in the IG report–then it might constitute new information. There’s also the question of how al-Jamadi’s treatment exceeded the torture John Yoo authorized; both the type of stress position used and the hood might qualify (and the importance of it would be reflected in the 2007 ICRC Report). We know, for example, that on May 26, 2010, Jay Bybee told the House Judiciary Committee that the CIA had not asked about–and so the Bybee Memo had not addressed–whether shackling someone to the ceiling fit the memo’s definition of a stress position.

Jerrold Nadler: Does Bybee Memo 2 or any other legal advice you gave at OLC authorize shackling a detainee to a hook in the ceiling as was described in my earlier question?

Jay Bybee: I don’t recall that any place in Bybee Memo 2 that we have addressed the question of shackling. So I don’t think it was one of the assumptions on which the CIA requested our advice. (Page 85-86)

So one new piece of evidence is Bybee’s testimony that he–and therefore Yoo–did not approve the crucifixion-type stress position that contributed to al-Jamadi’s death.

But that disappearing hood is worth noting by itself–it reflects an intent to cover up the crime.

Gul Rahman

I’m more interested in the possibly new information about Gul Rahman, because some reporting I’ve done reflects why DOJ revisited some of this.

As I noted here, amidst a discussion about prosecution declinations on PDF 72 of the second draft of the OPR Report, the OPR recommended reopening a specific declination because of the changed legal landscape.

The EDVA Memorandum was issued after the Bybee Memo had been publicly withdrawn, but before the Supreme Court’s decision in Hamdan. Accordingly. the prosecutors may have relied upon OLC’s erroneous determination that the War Crimes Act did not apply to suspected terrorists held abroad. We found no indication, however, that the EDVA declination decisions were revisited after Hamdan. In reviewing the declination decisions, the Department will have to determine whether prior OLC opinions and executive orders bar prosecution of these matters.

Now, this reference might refer to the death threats used with Abd al Rahim al-Nashiri (which today’s announcement suggests have been dropped), because that’s what the discussion preceding the four redacted pages immediately preceding this discussion treats. But we know from a footnote in Jay Bybee’s Second Response to the report that page 92 of the IG Report–that is, at least part of the second page of redaction–refers to the CIA’s argument that Rahman’s death shouldn’t be prosecuted, so it may well be Rahman. In any case, what’s key is that the OPR Report notes the EDVA’s reliance on OLC’s claim that crimes committed overseas couldn’t be prosecuted to be false.

That’s not the only “new” jurisdictional issue addressing whether crimes against Rahman could be prosecuted.

As I have written at length, the Bullet Point document–which appears to have been drafted as part of CIA’s information collection process in response to the IG Report and used as part of the declination process–also directly addressed whether crimes committed in the process of torture could be prosecuted. And one of the things included in it was the claim that no ordinary crimes (like negligent homicide, which would be relevant to Rahman’s death) could be prosecuted.

And in August 10, 2009. the 4th Circuit made it clear in David Passaro’s case that the Asadabad Firebase counted as a military mission at which US law applied. That’s precisely the kind of jurisdictional issue prosecutors used to decline the case in the past.

CIA officials referred the Salt Pit case to the Justice Department five years ago. Prosecutors concluded at the time that the Afghan prison was outside the reach of U.S. law, even though the CIA funded it and vetted its home-country guards.

Given that EDVA is in the same circuit, and given that Asadabad was less established than the Salt Pit, the fairly broad reading of this jurisdictional issue in Passaro’s case may impact Gul Rahman’s.

But the Bullet Point document is interesting for another reason that may pertain to Rahman’s death: because Rahman was reportedly water doused. Particularly given Holder’s emphasis on Yoo’s approvals, it’s relevant that the CIA stuck water dousing into the Bullet Point documents, after Rahman’s death, to suggest OLC had approved it as a torture technique.

But they hadn’t.

Which Bybee confirmed when he testified to HJC.

Nadler: Did Bybee Memo 2 or any other legal advice you gave at OLC authorize dousing detainees with cold water to keep them awake?

Bybee: Dousing with cold water was not one of the techniques that we were asked about in Bybee 2.

Nadler: So the answer is “no”?

Bybee: That’s right. (Page 104)

A full understanding of the Bullet Point documents, if the prosecutors didn’t already have one, would be one new factor making it possible to charge for water dousing and the subsequent death. But Bybee’s testimony would confirm that water dousing was not included in the Bybee Memos.

There’s some more, which I’ll get to in a subsequent post or three.

But for now, it looks like Durham has a few new details, a changed legal framework (because of Hamdan and, in Rahman’s case, possibly because of Passaro), and Jay Bybee’s testimony making it clear that the stress position and the water dousing that led to these detainees’ deaths had not been approved by OLC.

…Suspension was another common form of torture. The body of the victim was suspended by the wrists, arms, legs or neck, and at time in such manner as to strangle the victim or pull joints from their sockets. This method was at times combined with flogging during suspension. Specific instances of the employment of this method of torture occurred in the following places: China, at Shanghai and Nanking; French Indo-China, at Hanoi; Malaya, at Singapore, Victoria Point, Ipoh and Kuala Lumpur; Thailand, at Chumporn; burma, at Kyaikto; Borneo, at Sandakan; Sumatra, at Brastagi; Java, at Bandung, Soerabaja and Buitenzorg; Moluccas Islands, at Amboina; Portuguese Timor, at Dilli; Philippine Islands, at Manila, Nichols field, Palo, Iloilo City and Dumaguete; and in Japan, at Tokyo and Yokkaichi…

Ice Water and Sweatboxes; Darius Rejali; Slate; 3/17/11
[The long and sadistic history behind the CIA's torture techniques.]

In the 20th century, there were two main traditions of clean torture—the kind that doesn’t leave marks, as modern torturers prefer. The first is French modern, a combination of water- and electro-torture. The second is Anglo-Saxon modern, a classic list of sleep deprivation, positional and restraint tortures, extremes of temperature, noise, and beatings.
All the techniques in the accounts of torture by the International Committee of the Red Cross, as reported Monday, collected from 14 detainees held in CIA custody, fit a long historical pattern of Anglo-Saxon modern. The ICRC report apparently includes details of CIA practices unknown until now, details that point to practices with names, histories, and political influences. In torture, hell is always in the details.
[…]High-cuffing. Detainees routinely describe having their hands cuffed high above their heads while they stand with their feet on the ground. This is less damaging than full suspension by the wrists, which causes permanent nerve damage in 15 minutes to an average-size man. High-cuffing increases the time prisoners may be suspended, elongates the pain, and delays permanent injury. It is a restraint torture, as opposed to a positional torture, which requires prisoners to assume a normal human position (standing or sitting), but for a prolonged period of time.
High-cuffing is an old slave punishment of the Americas, once called “hanging from the rafters.” […]

On his last day as CIA director, Leon Panetta emphasized the wide scope of Durham’s preliminary review.
“After extensive examination of more than 100 instances in which CIA had contact or was alleged to have had contact with terrorist detainees,” the prosecutor “has determined that no further law enforcement action is appropriate in all but two discrete cases,” Panetta, who will be sworn in Friday as the new defense secretary, said in a statement.
Panetta added that “both cases were previously reviewed by career federal prosecutors who subsequently declined prosecution.”
“I welcome the news that the broader inquiries are behind us,” Panetta said. “We are now finally about to close this chapter of our agency’s history.” [...]

Or the Admin may have asked Holder to make an announcement. It is not actually true that this decision has just been made. We know witnesses have already been called to the al-Jamadi GJ. Who knows how long the Gul Rahman GJ has been going? (I’ll note–and I’ll return to this–the torture apologist hysteria following the OBL killing may give us some idea.)

But it may be that a public announcement was useful at this time. And yes, the Panetta/Petraeus swap may have been part of that.

You’re welcome, EW, though really, you did all the work (whether then, or now).

Now, I think it’s worth noting, even if a tad o/t, that the bullet points memo cited 17 techniques (it’s really 16, though) the CIA relied upon, and it would be worth comparing those techniques in general with those approved in the 2002 Yoo/Bybee memo.

I’ll only add that water dousing was not apparently an original Bullet Point technique (which is what one might surmise from your formulation above), but appears to have been added on, with an appeal for approval from Scott Muller to Jack Goldsmith in 2004 (almost a year after the original Bullet Point documents), as I know you already know. Your hypothesis as to why they added it is one I agree with.

The letter rogatory to the Spanish court refers to “pending federal investigations by the United States Attorneys’ Office for the Eastern District of Virginia” on “various allegations of abuse of detainees.” (p. 3-4 of letter) In addition the letter refers to “pending status and legal restrictions on the disclosure of investigative information, including rules of grand jury secrecy”. Since there has been no previous reports on current grand jury proceedings in the Eastern District on detainee abuse that I know of, is this a reference to the former cases since sent from the Eastern District by Attorney General Holder in 2009 for review by special prosecutor John Durham? Or is this something new? Have some of the cases under preliminary review by Mr. Durham now reached full investigation status?

…. It seems unlikely that the Durham investigation is actually going to bear any fruit, or that a grand jury investigation on detainee abuse is actually underway in Virginia. Sooner or later, we will know the truth.

Well, I noticed, and in that I was prescient. As to my thought that it was “unlikely… that a grand jury investigation on detainee abuse is actually underway in Virginia,” I was evidently wrong. But I think we could look at the response to the Spanish court to give us some indication as to the “why” of the timing. As to the pronouncement, I also think it was timed to Petraeus/Panetta flop. No room for Petraeus to muck around in this business.

That said, I think Petraeus is a most dangerous DCI, much more so than Panetta. For one thing, he has more intimate knowledge of the use of torture.

That term “Anglo-Saxon Modern”…
sounds like a school of architecture.
Does form follow function,
or function form?
Who ascertains the scope?
Who designs the structure?
Which builder does The Job?
Who inspects his work?
Who pays for it?

Well, contrary to yesterday’s written announcement by the Attorney General, as noted here, yesterday’s written statement by the (now-former) CIA Director – which is quoted in the AP article by Pete Yost and Adam Goldman – clearly asserts that the decision to limit further criminal investigation was made by John Durham:

The Attorney General has informed me that, with limited exceptions, the Department of Justice inquiries concerning the Agency’s former rendition, detention, and interrogation program have been completed and are now closed. Specifically, I have been notified that Assistant U.S. Attorney John Durham has finishedthe “preliminary review” of detainee treatment cases announced in August 2009. After extensive examination of more than 100 instances in which CIA had contact or was alleged to have had contact with terrorist detainees, he has determined that no further law enforcement action is appropriate in all but two discrete cases.

- Leon Panetta, 6/30/11

But that assertion obviously isn’t coming from the agency that made the decision(s), so it would really be nice to see some skepticism from reporters on this seeming contradiction, accompanied by some pointed follow-up questioning of A.G. Holder and the DOJ to clarify and confirm exactly who at the DOJ in fact “determined” that only two cases merited full criminal investigations.